February 4, 2008

Dear Representative: 

Re:  ACLU Urges Members of Congress to Support H.R. 4545, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007

    On behalf of the American Civil Liberties Union (ACLU), a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we urge you to co-sponsor and support H.R.4545, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2007 which would eliminate the unjust and discriminatory 100 to 1 disparity between crack and powder cocaine sentences in federal law.

    Currently, the federal crack cocaine law requires that if a person gets caught distributing or possessing 5 grams of crack cocaine, he or she is subject to a five-year mandatory minimum sentence – the same sentence that person would face for distributing 500 grams of powder cocaine.  A person convicted of distributing 50 grams of crack cocaine is subject to a ten-year mandatory minimum.  It takes 5000 grams of powder cocaine to receive the same ten-year mandatory sentence. This is often referred to as the federal 100 to 1 disparity between crack and powder cocaine.

    H.R.4545, a bipartisan bill introduced by Representatives Sheila Jackson-Lee (D-TX) and Christopher Shays (R-CT) would eliminate the current disparity in federal sentences between crack and powder cocaine offenses. The ACLU supports this legislation because many of the myths associated with determining the 100 to 1 ratio have been proven wrong by recent data. Numerous scientific and medical experts have determined that the pharmacological effects of crack cocaine are no more harmful than powder cocaine.  The effect on users is the same regardless of form. Thus, federal law should not make a distinction between sentences for selling or possession of the two drugs and equalizing the disparity is the only fair way to address the 100 to 1 ratio.

    The ACLU also commends Representatives Charles Rangel (D-NY) and Bobby Scott (D-VA) for their long-standing efforts to address the federal crack cocaine disparity.  Representative Rangel has introduced H.R.460, the Crack Equitable Sentencing Act of 2007 which would also eliminate the federal crack and powder cocaine disparity. 

    Representative Bobby Scott has introduced H.R.5035, Fairness in Cocaine Sentencing Act of 2008 which would eliminate the mandatory minimum sentences for both crack and powder cocaine offenses on the federal level, as well as provide funding for federal and state drug courts. In order for judges to exercise appropriate discretion and consider mitigating factors in sentencing, mandatory minimums for crack and powder offenses must be eliminated, including the mandatory minimum for simple possession. In addition, the ACLU supports alternatives to incarceration in order to reduce the number of people in jails and prisons across the country. However, any alternatives to incarceration should recognize that drug use and addiction are public health problems, properly dealt with outside the criminal justice system. In the context of drug courts, the concern for the ACLU is that they must be closely monitored to ensure that they do not infringe on constitutional protections such as due process rights for defendants. We hope to work with Representative Scott to address some of our concerns about drug courts.

    In April 2007, the United States Sentencing Commission (USSC) promulgated amendments to the Federal Sentencing Guidelines that make them more consistent with the statutory mandatory minimums. This guideline amendment became effective November 1, 2007.  On December 11, 2007, in a 7-0 unanimous decision, the USSC decided to apply the guideline amendment changes retroactively.  This will result in approximately 19,500 prisoners who are serving sentences longer than the five- and ten-year mandatory minimums, as a result of the sentencing guidelines, to be eligible for the sentence they should have received in accordance with the law.

    However, even with all these very exciting developments it is important to remember that the USSC’s guideline amendments are only a small step forward in the efforts to reform the federal crack cocaine law. These guideline changes will not eliminate or even significantly alleviate the very long mandatory minimum sentences that many people are serving for crack cocaine offenses.  Congress still must act in order to eliminate the statutory 100 to 1 disparity between crack and powder cocaine.  The ACLU strongly urges you to co-sponsor and support the passage of H.R. 4545 in order to end this 20-year travesty of justice.  If you have any question, please feel free to contact Jesselyn McCurdy, Legislative Counsel at jmccurdy@dcaclu.org or (202) 675-2314.

Sincerely,

Caroline Fredrickson
Director

Jesselyn McCurdy
Legislative Counsel